1. On 20th September, 2021, the appellant herein was found guilty and convicted of the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act.
2. He was sentenced to life imprisonment.
3. The appellant submits that the trial magistrate fell into error in the way the court conducted and recorded void dire evidence.
4. He argues that the trial magistrate did not ask questions not interrogate the child who was 10 years old at the time the offence was committed so as to find out whether the child understood what telling the truth or lying meant or the oath or the consequences of lying.
5. The child evidence called for corroboration and it was not safe to convict the appellant on the basis of such evidence.
6. The appellant takes issue with the fact that court fell into error in finding that the child’s evidence was corroborated.
7. He argues that illegal and unprocedurally recorded evidence cannot be legally corroborated.
8. On the issue of penetration, he argues that when the appellant cross examined PW-5, he stated that, "The child said she had been defiled 3 days prior and also on 14th June, 2026. I confirmed there was defilement. There was evidence of penetration but one can tell when it happened”.
9. He argues that the learned trial erred in law and fact by finding that penetration had been proved, despite the prosecution's medical evidence being inconsistent, inconclusive, self-contradictory, and incapable of establishing when or how the alleged injuries occurred.
10. He then argues that the court shifted the burden of proof from the prosecution to him. This is so because the court failed to find that he could have even remained silent when the prosecution had a weak case as in this case.
11. He finally argues that the trial court fell into error by applying and sentencing him to the mandatory statutory term thereby applying its discretion wrongly.
The Respondent's Case;
12. In opposing the appeal,The prosecution argues that it proved the age of the victim through being born on 16th January, 2010 through a birth certificate.
13. The child confirmed her age. The prosecution submits that the element of age has been satisfactorily proved.
14. On penetration PW 1 narrated how the assailant defiled her in a bush near a river.
15. This evidence was corroborated by the evidence of the doctor Pw 5 who examined the victim. A clinical officer, who produced the treatment notes and confirmed that the complainant's hymen was broken, though with old hymeneal tears. He nonetheless concluded that the girl had been defiled. This corroboration meets the evidentiary threshold under section 124 of the Evidence Act. The reporting timeline further supports the credibility of PW 1 's narrative. PW I was advised to seek medical treatment.
16. The identification was therefore free from error, and the accused's identity is not in doubt.
17. It argues that the victim saw him through the day light when the appellant offered 20 Kshs.
18. PW 1 identified him since he spent a long time with her when he was defiling her.
19. On the issue of corroboration, the respondent argues that the victim identified the appellant after she was in close proximity with him.
20. The law allows a conviction that is based on a single witness under Section 143 of The Evidence Act.
21. It argues that the failure to call the investigation officer is not fatal.
22. The respondent argues that the inconsistencies are not major nor fatal as to vitiate the conviction.
23. On the issue of alibi, the Respondent argues that the trial court considered the defence of alibi in the judgment.
24. It is its case that the defence was in any event introduced very late in the proceedings as an afterthought.
25. On the sentence meted out, we submit that the Court appropriately applied the law and sentencing guidelines. The Sexual Offences, at Section 8(3) prescribe a minimum of 20 years imprisonment. The accused was allowed to mitigate, and a pre-sentencing report was availed. The court considered the mitigation and indeed reduced the sentence beyond the statutory minimum and sentenced him to life imprisonment.
Analysis and Determination;
26. The issue for determination is whether the appeal has merit.
27. In the case of Ajode –vs- Republic Criminal Appeal No. 87 of 2004 the Court of Appeal sitting in Kisumu held inter alia that:-
“In law it is the duty of the first appellate court to weigh the same conflicting evidence and make its own inferences and conclusions but bearing in mind always that it has neither seen nor heard the witness and make allowance for that”.
28. In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, it was held that:-
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
29. Section 2(1) of the Sexual Offences Act, 2006 provides the following definition:
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
30. I have looked at the evidence and I am satisfied that the victim told the trial Court exactly what happened and that the appellant defiled her.This is demonstrated in the analysis below.
31. The doctor Pw 5 who examined the victim concluded that the girl had been defiled.
32. Under Section 124 of the Evidence Act, corroboration is not necessary in sexual offences. The section provides as follows:
“Notwithstanding the provisions of section 19 of the oaths and statutory declaration Act, where the evidence of an alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence; the accused shall not be liable to be convicted on such evidence unless it is corroborated by other Material Evidence in support thereof implicating him provided that wherein a criminal case involving a Sexual Offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if for reasons to be recorded, in the proceedings, the court is satisfied that the alleged victim is telling the truth”.
33. The witnesses who testified proved the offence.Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides that:
"No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. "
34. The Court of Appeal in Bukenya & Others v Uganda [19721 EA 549 held that while the prosecution should make available all witnesses necessary to establish the truth, it retains the discretion to decide which witnesses to call, unless it is shown that the witnesses not called were crucial and that their evidence would have been adverse to the prosecution.
35. From the evidence of PW 5 as read alongside the treatment notes,the court is satisfied that the prosecution proved that the complainant's hymen was broken.The court is satisfied that there was penetration and there is no justification for the setting aside the conviction and judgment.
36. On identification, the victim saw him through the daylight when he offered her Kshs.20.The appellant spent a reasonably long time with her when he was defiling her.This created an environment where she could identify the appellant.
37. The identification was therefore in my opinion free from error, and the appellant's identity was not in doubt and I so hold.
38. The age of the victim is clear from the birth certificate that she was born on 16th January, 2010 the child also confirmed her age. The child was 10 years old at the time the offence was committed.
39. The court is satisfied that the prosecution proved all the ingredients of the offence and the conviction and sentencing were legal.
Determination:
40. The appeal lacks merit.
Order:
The appeal is dismissed.
Dated, Signed and Delivered Virtually at Eldoret this 14th day of July 2026.
2. He was sentenced to life imprisonment.
3. The appellant submits that the trial magistrate fell into error in the way the court conducted and recorded void dire evidence.
4. He argues that the trial magistrate did not ask questions not interrogate the child who was 10 years old at the time the offence was committed so as to find out whether the child understood what telling the truth or lying meant or the oath or the consequences of lying.
5. The child evidence called for corroboration and it was not safe to convict the appellant on the basis of such evidence.
6. The appellant takes issue with the fact that court fell into error in finding that the child’s evidence was corroborated.
7. He argues that illegal and unprocedurally recorded evidence cannot be legally corroborated.
8. On the issue of penetration, he argues that when the appellant cross examined PW-5, he stated that, "The child said she had been defiled 3 days prior and also on 14th June, 2026. I confirmed there was defilement. There was evidence of penetration but one can tell when it happened”.
9. He argues that the learned trial erred in law and fact by finding that penetration had been proved, despite the prosecution's medical evidence being inconsistent, inconclusive, self-contradictory, and incapable of establishing when or how the alleged injuries occurred.
10. He then argues that the court shifted the burden of proof from the prosecution to him. This is so because the court failed to find that he could have even remained silent when the prosecution had a weak case as in this case.
11. He finally argues that the trial court fell into error by applying and sentencing him to the mandatory statutory term thereby applying its discretion wrongly.
The Respondent's Case;
12. In opposing the appeal,The prosecution argues that it proved the age of the victim through being born on 16th January, 2010 through a birth certificate.
13. The child confirmed her age. The prosecution submits that the element of age has been satisfactorily proved.
14. On penetration PW 1 narrated how the assailant defiled her in a bush near a river.
15. This evidence was corroborated by the evidence of the doctor Pw 5 who examined the victim. A clinical officer, who produced the treatment notes and confirmed that the complainant's hymen was broken, though with old hymeneal tears. He nonetheless concluded that the girl had been defiled. This corroboration meets the evidentiary threshold under section 124 of the Evidence Act. The reporting timeline further supports the credibility of PW 1 's narrative. PW I was advised to seek medical treatment.
16. The identification was therefore free from error, and the accused's identity is not in doubt.
17. It argues that the victim saw him through the day light when the appellant offered 20 Kshs.
18. PW 1 identified him since he spent a long time with her when he was defiling her.
19. On the issue of corroboration, the respondent argues that the victim identified the appellant after she was in close proximity with him.
20. The law allows a conviction that is based on a single witness under Section 143 of The Evidence Act.
21. It argues that the failure to call the investigation officer is not fatal.
22. The respondent argues that the inconsistencies are not major nor fatal as to vitiate the conviction.
23. On the issue of alibi, the Respondent argues that the trial court considered the defence of alibi in the judgment.
24. It is its case that the defence was in any event introduced very late in the proceedings as an afterthought.
25. On the sentence meted out, we submit that the Court appropriately applied the law and sentencing guidelines. The Sexual Offences, at Section 8(3) prescribe a minimum of 20 years imprisonment. The accused was allowed to mitigate, and a pre-sentencing report was availed. The court considered the mitigation and indeed reduced the sentence beyond the statutory minimum and sentenced him to life imprisonment.
Analysis and Determination;
26. The issue for determination is whether the appeal has merit.
27. In the case of Ajode –vs- Republic Criminal Appeal No. 87 of 2004 the Court of Appeal sitting in Kisumu held inter alia that:-
“In law it is the duty of the first appellate court to weigh the same conflicting evidence and make its own inferences and conclusions but bearing in mind always that it has neither seen nor heard the witness and make allowance for that”.
28. In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, it was held that:-
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
29. Section 2(1) of the Sexual Offences Act, 2006 provides the following definition:
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
30. I have looked at the evidence and I am satisfied that the victim told the trial Court exactly what happened and that the appellant defiled her.This is demonstrated in the analysis below.
31. The doctor Pw 5 who examined the victim concluded that the girl had been defiled.
32. Under Section 124 of the Evidence Act, corroboration is not necessary in sexual offences. The section provides as follows:
“Notwithstanding the provisions of section 19 of the oaths and statutory declaration Act, where the evidence of an alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence; the accused shall not be liable to be convicted on such evidence unless it is corroborated by other Material Evidence in support thereof implicating him provided that wherein a criminal case involving a Sexual Offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if for reasons to be recorded, in the proceedings, the court is satisfied that the alleged victim is telling the truth”.
33. The witnesses who testified proved the offence.Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides that:
"No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. "
34. The Court of Appeal in Bukenya & Others v Uganda [19721 EA 549 held that while the prosecution should make available all witnesses necessary to establish the truth, it retains the discretion to decide which witnesses to call, unless it is shown that the witnesses not called were crucial and that their evidence would have been adverse to the prosecution.
35. From the evidence of PW 5 as read alongside the treatment notes,the court is satisfied that the prosecution proved that the complainant's hymen was broken.The court is satisfied that there was penetration and there is no justification for the setting aside the conviction and judgment.
36. On identification, the victim saw him through the daylight when he offered her Kshs.20.The appellant spent a reasonably long time with her when he was defiling her.This created an environment where she could identify the appellant.
37. The identification was therefore in my opinion free from error, and the appellant's identity was not in doubt and I so hold.
38. The age of the victim is clear from the birth certificate that she was born on 16th January, 2010 the child also confirmed her age. The child was 10 years old at the time the offence was committed.
39. The court is satisfied that the prosecution proved all the ingredients of the offence and the conviction and sentencing were legal.
Determination:
40. The appeal lacks merit.
Order:
The appeal is dismissed.
Dated, Signed and Delivered Virtually at Eldoret this 14th day of July 2026.